The Council found that the proposed development (cemetery) was appropriate development in the Green Belt, since it would preserve openness and would not conflict with the purposes of including land in the Green Belt.

“In my judgment, properly interpreted, section 9 NPPF means that any development in the Green Belt is treated as prima facie “inappropriate” and can only be justified by reference to “very special circumstances” save in the defined circumstances set out in paragraphs 89 and 90.” [25]

“The true position surely is this. Development that is not, in principle, “inappropriate” in the Green Belt is, as Dove J. said in paragraph 62 of his judgment, development “appropriate to the Green Belt”. On a sensible contextual reading of the policies in paragraphs 79 to 92 of the NPPF, development appropriate in – and to – the Green Belt is regarded by the Government as not inimical to the “fundamental aim” of Green Belt policy “to prevent urban sprawl by keeping land permanently open”, or to “the essential characteristics of Green Belts”, namely “their openness and their permanence” (paragraph 79 of the NPPF), or to the “five purposes” served by the Green Belt (paragraph 80). This is the real significance of a development being appropriate in the Green Belt, and the reason why it does not have to be justified by “very special circumstances”.” [24]

125. From these authorities, a number of propositions are clear and uncontroversial.

i) Planning guidance is a material consideration for planning plan-making and decision-taking. However, it does not have statutory force: the only statutory obligation is to have regard to relevant policies.

ii) The test for redefining a Green Belt boundary has not been changed by the NPPF (nor did Mr Dove suggest otherwise).

a) In Hunston, Sir David Keene said (at [6]) that the NPPF “seems to envisage some review in detail of Green Belt boundaries through the new Local Plan process, but states that ‘the general extent of Green Belts across the country is already established'”. That appears to be a reference to paragraphs 83 and 84 of the NPPF. Paragraph 83 is quoted above (paragraph 109). Paragraph 84 provides:

“When drawing up or reviewing Green Belt boundaries local planning authorities should take account of the need to promote sustainable patterns of development?”.

However, it is not arguable that the mere process of preparing a new local plan could itself be regarded as an exceptional circumstance justifying an alteration to a Green Belt boundary. National guidance has always dealt with revisions of the Green Belt in the context of reviews of local plans (e.g. paragraph 2.7 of PPG2: paragraph 83 above), and has always required “exceptional circumstances” to justify a revision. The NPPF makes no change to this.

b) For redefinition of a Green Belt, paragraph 2.7 of PPG2 required exceptional circumstances which “necessitated” a revision of the existing boundary. However, this is a single composite test; because, for these purposes, circumstances are not exceptional unless they do necessitate a revision of the boundary (COPAS at [23] per Simon Brown LJ). Therefore, although the words requiring necessity for a boundary revision have been omitted from paragraph 83 of the NPPF, the test remains the same. Mr Dove expressly accepted that interpretation. He was right to do so.

iii) Exceptional circumstances are required for any revision of the boundary, whether the proposal is to extend or diminish the Green Belt. That is the ratio of Carpets of Worth.

iv) Whilst each case is fact-sensitive and the question of whether circumstances are exceptional for these purposes requires an exercise of planning judgment, what is capable of amounting to exceptional circumstances is a matter of law, and a plan-maker may err in law if he fails to adopt a lawful approach to exceptional circumstances. Once a Green Belt has been established and approved, it requires more than general planning concepts to justify an alteration.” [124]-[125]

“The fact that a particular site within a council’s area happens not to be suitable for housing development cannot be said without more to constitute an exceptional circumstance, justifying an alteration of the Green Belt by the allocation to it of the site in question.” [36]

“What is clear from the principles distilled in the case of Gallagher is that for revisions to the green belt to be made exceptional circumstances have to be demonstrated. Whether they have been is a matter of planning judgment in a local plan exercise ultimately for the inspector. It is of note that in setting out the principles in Gallagher there is no reference to a falsification doctrine [that the basis on which land was excluded from the Green Belt has been falsified] or that any release of green belt land has to be seen as a last resort.” [96]

“Mr Turney … submitted that the fact that a particular site happens to be suitable for housing development cannot, without more, constitute an exceptional circumstance justifying an alteration of the Green Belt. I agree with Mr Turney insofar as this goes… Suitability simplicitercannot logically be envisaged as an exceptional circumstance…; suitability and availability may do, subject to the refinements discussed below.

“The second sentence of paragraph 84 is not altogether clear. On the face of things, it might well be argued that it appears to reinforce the need to protect the Green Belt, but in my view it is capable of being interpreted slightly more broadly. The consequences for sustainable development may require revision of the Green Belt. Nonetheless, I do not readily agree with Miss Ellis that paragraph 84 throws any light on the meaning of “exceptional circumstances” within paragraph 83, or should be taken as somehow diluting this aspect. Sustainable development embraces environmental factors, and such factors are likely to be negatively in play where release of Green Belt is being considered. The second sentence of paragraph 83 supplies a fetter or brake on development which would, were it not for the Green Belt, otherwise be sustainable; but in deciding whether exceptional circumstances pertain regard must be had to the whole picture, including as I have said the consequences.” [19]

Paragraph 84 “is clear advice to decision makers to take into account the consequences for sustainable development of any review of green belt boundaries. As part of that patterns of development and additional travel are clearly relevant.” [98]

On the facts, the Inspector was obliged to find a housing shortfall. However, the weight to be given to such a housing shortfall (and whether it constituted ‘very special circumstances’ for the purposes of NPPF 87) was a matter of planning judgment. The weight to be attached to the shortfall may, as a matter of planning judgment, be reduced where a shortfall is inevitable due to a district being subject to policies which restrict development (such as AONBs, National Parks or Green Belts).

The meaning of ‘development’ in the NPPF is the same as in s.55 of the TCPA 1990. A material change of use can be inappropriate development for the purposes of NPPF 87: [18].

R (Khan) v LB Sutton [2014] EWHC 3663 (Admin), Patterson J

[After quoting from Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692]

“The guidance in the NPPF is unchanged in relation to very special circumstances. As such, whether a factor constitutes a very special circumstance is a matter for the decision maker in the exercise of his judgment in any particular case.” [80]

“…paras. 87-88 of the NPPF provide guidance regarding the approach to be adopted if there is a proposal for development of an area within the Green Belt set out in a local plan: “very special circumstances” have to be shown. This is a stricter test than that in para. 83 in respect of changing the boundaries of the Green Belt in the local plan.” [54]

“The NPPF does not require the planning authority to chop up a mixed use proposal into separate components and to apply the very special circumstances test separately in relation to each such component. No authority was cited to support that interpretation and I do not think that it is justifiable on the language used in paragraph 88 of the NPPF.” [167]

Dear v Secretary of State for Communities and Local Government [2015] EWHC 29 (Admin), HHJ Belcher

The case concerned the weight to be given to harm to the Green Belt, in circumstances where the best interests of children must also be a primary consideration,

“In my judgement, provided the decision-maker ascribes the correct weight at the outset, in carrying out any adjustment to the weighting when considering the individual circumstances of the case, it matters not whether he reduces the weight on one side of the balance, or increases the weight on the other. The effect will be the same.” [47]

“A shortfall in housing land supply can, as a matter of policy, be a very special circumstance, although the occasions when it is likely to suffice by itself to warrant the grant of permission for housing development in the Green Belt are expected to be few and far between. That is in effect what the NPPF and the Ministerial statement say. So there is nothing unlawful in the committee treating it as one of a number of very special circumstances. I do not accept Mr Harwood’s submission that the committee considered it as another material consideration rather than as a very special circumstance. But, if so, it does not help the claimant. Once the issue is whether or not inappropriate development should be permitted in the Green Belt, all factors which tell in favour of the grant go to making up very special circumstances, which may or may not suffice. It is not necessary to go through the process of considering whether a factor is not a very special circumstance but nonetheless falls to be taken into account in favour of the development as another relevant material consideration. See Secretary of State for Communities and Local Government v Redhill Aerodrome Ltd [2014] EWCA Civ 1386.” [68]

Atkins v Tandridge City Council [2015] EWHC 1947 (Admin), Dove J

Adopted the need for Green Belt harm and other harm to be clearly outweighed, in Doncaster MBC v Secretary of State [2002] EWHC 808 (Admin), para 70:

“Given that inappropriate development is by definition harmful, the proper approach is whether the harm by reason of inappropriateness and the further harm, albeit limited, cause to the openness and purpose of the Green Belt, was clearly outweighed by the benefit to the appellant’s family and particularly to the children so as to amount to very special circumstances justifying an exception to Green Belt policy.”

“The first sentence of paragraph 88 of the NPPF must not be read in isolation from the policies that sit alongside it. The correct interpretation of it, I believe, is that a decision-maker dealing with an application for planning permission for development in the Green Belt must give “substantial weight” to “any harm to the Green Belt” properly regarded as such when the policies in paragraphs 79 to 92 are read as a whole (consistent with the approach taken, for example, in the judgment of Sullivan L.J., with whom Tomlinson and Lewison L.JJ. agreed, in Redhill Aerodrome Ltd. v Secretary of State for Communities and Local Government [2015] P.T.S.R. 274 , at paragraph 18). Reading these policies together, I think it is quite clear that “buildings for agriculture and forestry”, and other development that is not “inappropriate” in the Green Belt, are not to be regarded as harmful either to the openness of the Green Belt or to the purposes of including land in the Green Belt. This understanding of the policy in the first sentence of paragraph 88 does not require one to read into it any additional words.” [17]

“The words “agricultural building” in the NPPF, as in the legislation, in my view mean a building used for the purposes of agriculture alone and do not include one which was used for the purposes of agriculture alone and do not include one which was used for agricultural purposes but which, lawfully, is now used for another purpose, mixed with agriculture or not. These buildings were in fact no longer used for agricultural purposes alone. A barn now converted to a dwelling was once used for agricultural purposes, it was an agricultural building, but it is now a dwelling house and not an agricultural building.

The second aspect of this issue is whether nonetheless, as Mr Jones contended, the previous agricultural use of the buildings meant that the land was still excluded from “previously developed land” as it remains land which “is or has been occupied by agricultural buildings”. The language of the exclusion was quite straightforward. Mr Harwood contended that the exclusion could not apply where the agricultural use of the buildings had ceased and had been replaced by another use, whether a permitted use, or one which had become a lawful use. The position would be even more obvious if the buildings had been demolished and lawfully replaced with other buildings for use for non-agricultural purposes, but which logically on Mr Jones’ submission would still mean that the land “has been occupied” by agricultural buildings.

In my judgment, those words must be read in the context of the words defining previously developed land. That is land which “is or was occupied by a permanent structure”. The exception uses the words “is or has been occupied by agricultural buildings”. The policy first looks at the present position and asks what buildings occupy the site, to which the answer is: buildings lawfully not used for agricultural purposes. The present tense deals with the position as it is. The policy then looks at whether the land “was” or “has been” occupied by permanent structures or certain buildings. The past tense deals with the position where the buildings which once occupied the land no longer do so, having been demolished, or fallen down. Their removal does not in general prevent land being previously developed land, and in the case of agricultural buildings, their removal does not end the exception. The past tense is not used to deal with former agricultural buildings which continue occupy the land but which are no longer agricultural buildings. That is covered by what “agricultural building” means.

The problem with Mr Jones’ approach is three fold, although I can see that his interpretation is a possible one. First, it does not seem to me the most natural reading of the language of the policy. The policy would have to cover the position where buildings still occupy on the site, and where they once occupied the site but have since been demolished or have fallen down. That is what the two tenses deal with. The use of the past tense to cover both sites no longer occupied by any buildings, and sites still occupied by buildings but which have changed from a use within the exception to one outside it, rather strains the scope of quite simple language. Second, the policy justification for his suggested interpretation is not strong enough to overcome that reading. The aim of the agricultural building exception is to avoid a necessary exception to normal policies, agricultural buildings in the countryside and the Green Belt, often permitted development not requiring specific planning permission, becoming the vehicle, through this new policy, for allowing built development which would otherwise be inappropriate in the Green Belt, or not normally allowed in the countryside. Were the lawful change of use of an agricultural building to become the vehicle for a new non-agricultural building, the aim of the policy could be to some degree undermined though it would still cover the erection of new non-agricultural buildings. I do not think that that makes a sufficient dent in the rationale for the policy to overcome the simple reading of straightforward language. Third, it would introduce some very odd consequences which I cannot accept are intended. If agricultural buildings had once occupied a site, whether they had changed their use long ago, or had been demolished and replaced with non-agricultural buildings with permission, the site could not be previously developed land. If the whole of the southern site is redeveloped for housing, it would still be within the exception to previously developed land when any further redevelopment took place. Accordingly, I conclude that the southern part of the site was correctly treated as previously developed land.” [38]-[41]

“The description of development was amended to refer to the retention of the building and its change of use to offices but it still did not involve the construction of a new building applying the ordinary and natural meaning of those words.” [31]

“Where the NPPF refers to exceptionally treating as appropriate limited affordable housing for local community needs “under policies set out in the Local Plan”, it plainly intends that the relevant policy, here HG/5, should be properly complied with; that is, complied with according to its terms. Its terms require compliance in full with the criteria.” [24]

This case concerned whether a settlement was a village for the purpose of the penultimate bullet point of NPPF 89.

“Whilst accepting that there is no one definition of a village, Miss Graham Paul submitted that in interpreting Green Belt policy, and giving the word ‘village’ its ordinary reasonable meaning, for a settlement to be considered a village it must have at least one of the following: a clear core, boundaries, an evolution of different housing types and styles, basic services, highway frontage, or a population of between hundreds and thousands. Her skeleton characterise this submission as “must have” at least one of those criteria. In her oral submissions, she accepted the position was more nuanced. She accepted that no one factor was determinative, but she submitted that a village should have at least one of those criteria.” [19]

“In my judgment, that discussion and Miss Graham Paul’s responses, served to emphasise that the question of whether a given settlement is, or is not, a village, is inevitably a matter of planning judgement. The fact that different members of the public, or indeed a different planning authority might take a different view of the matter does not undermine the planning judgment unless it can properly be said to be irrational, that is a decision that no reasonable planning authority could have reached, or in the words of Sedley J (as he then was) in R v Parliamentary Commissioner for Administration, ex-parte Morris and Balchin [1997] JPL 917 at 927 “…… a decision which does not add up – in which, in other words, there is an error in reasoning which robs the decision of logic.”” [25]

“In my judgment I cannot possibly conclude that a village must have at least one of the items on Miss Graham Paul’s list, or that in the absence of at least one of the criteria in her list, a decision that a particular settlement amounts to a village is, therefore, irrational. There is no proper basis upon which I could conclude that any of the criteria is required. It would amount to my own subjective view and, in effect, a review of the decision itself (which is not the function of judicial review) rather than a review of the decision making process (which is the function of judicial review). In my view Miss Graham Paul’s list is inevitably subjective, and the subjective decisions to be made on the facts of this case are properly to be made collectively by those exercising planning judgement.” [27]

“Where the NPPF refers to exceptionally treating as appropriate limited affordable housing for local community needs “under policies set out in the Local Plan”, it plainly intends that the relevant policy, here HG/5, should be properly complied with; that is, complied with according to its terms. Its terms require compliance in full with the criteria.” [24]

This case concerned whether a settlement was a village for the purpose of the penultimate bullet point of NPPF 89.

“Whilst accepting that there is no one definition of a village, Miss Graham Paul submitted that in interpreting Green Belt policy, and giving the word ‘village’ its ordinary reasonable meaning, for a settlement to be considered a village it must have at least one of the following: a clear core, boundaries, an evolution of different housing types and styles, basic services, highway frontage, or a population of between hundreds and thousands. Her skeleton characterise this submission as “must have” at least one of those criteria. In her oral submissions, she accepted the position was more nuanced. She accepted that no one factor was determinative, but she submitted that a village should have at least one of those criteria.” [19]

“In my judgment, that discussion and Miss Graham Paul’s responses, served to emphasise that the question of whether a given settlement is, or is not, a village, is inevitably a matter of planning judgement. The fact that different members of the public, or indeed a different planning authority might take a different view of the matter does not undermine the planning judgment unless it can properly be said to be irrational, that is a decision that no reasonable planning authority could have reached, or in the words of Sedley J (as he then was) in R v Parliamentary Commissioner for Administration, ex-parte Morris and Balchin [1997] JPL 917 at 927 “…… a decision which does not add up – in which, in other words, there is an error in reasoning which robs the decision of logic.”” [25]

“In my judgment I cannot possibly conclude that a village must have at least one of the items on Miss Graham Paul’s list, or that in the absence of at least one of the criteria in her list, a decision that a particular settlement amounts to a village is, therefore, irrational. There is no proper basis upon which I could conclude that any of the criteria is required. It would amount to my own subjective view and, in effect, a review of the decision itself (which is not the function of judicial review) rather than a review of the decision making process (which is the function of judicial review). In my view Miss Graham Paul’s list is inevitably subjective, and the subjective decisions to be made on the facts of this case are properly to be made collectively by those exercising planning judgement.” [27]

NPPF 89-90

Fordent Holdings v Secretary of State for Communities and Local Government [2013] EWHC 2844 (Admin), HHJ Pelling QC

“Previous national policy in relation to Green Belt development defined material changes of use as inappropriate unless they maintained openness and did not conflict with the purposes of including land within the Green Belt – see PPG2, Paragraph 3.12. That approach has not been carried through into the NPPF however, where the preferred approach is to attempt to define what is capable of being “not inappropriate”1 development within the Green Belt with all other development being regarded as inappropriate by necessary implication. It is for this reason that there is no definition within Chapter 9 of the NPPF of what constitutes inappropriate development, or any criteria by which whether a proposed development is or is not appropriate could be ascertained. It is for that reason that Paragraph 89 of the NPPF provides that a particular form of development – the construction of new buildings – in the Green Belt is inappropriate unless one of the exceptions identified in the Paragraph applies. Paragraph 90 defines the “other forms of development” there referred to as also at least potentially not inappropriate. The effect of Paragraphs 87, 89 and 90, when read together is that all development in the Green Belt is inappropriate unless it is either development (as that word is defined by s.55 of the TCPA) falling within one or more of the categories set out in Paragraph 90 or is the construction of a new building or buildings that comes or potentially comes within one of the exceptions referred to in Paragraph 89.” [19]

Footnote: “In the course of the submissions before me, I was told that the correct distinction was between inappropriate development and development that was “not inappropriate”. I note that this is not the phraseology adopted for example in Europa Oil and Gas Limited v. SSCLG (ante) where the antithesis of inappropriate is said to be “appropriate”. In this judgment I have maintained the phraseology used by the parties without reaching any judgment as to whether its use is correct.”

Change of use can fall within paragraph 81, but this does not mean by definition that a change of use falling within paragraph 81 is necessarily not inappropriate development for the purposes of paragraph 90: [23].

“There is no general exception for changes of use that maintain openness and do not conflict with the purposes of the Green Belt.”[24]

Paragraph 89 is a “closed list of classes” [25]. It applies only to the construction of new buildings [26].

“Merely because a proposed development is inappropriate does not mean that there is a prohibition on it. The categories of what constitute very special circumstances are not closed.” [28]

“First, the correct approach to the very special circumstances test is to ask the following question (adapting the wording of §70 in [Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 808 (Admin)] (as approved by Carnwath LJ in [Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692 [2009] PTSR 19] §26)):

“Given that inappropriate development is by definition harmful, the proper approach [is] whether the harm by reason of inappropriateness and the further harm, albeit limited, caused to the openness and purpose of the Green Belt was clearly outweighed by the [countervailing benefit arising from the development] so as to amount to very special circumstances justifying an exception to the Green Belt policy”

“Thus, in considering whether to allow development in the Green Belt, the decision maker must consider, first , the “definitional” harm arising from the inappropriate development as well as such further harm to the Green Belt as is identified as being caused by the development in that case, and then secondly consider countervailing benefits said to be served by the development; and then consider whether those benefits clearly outweigh the harm so as to amount to very special circumstances. Secondly , in order to qualify as “very special”, circumstances do not have to be other than “commonplace” i.e. they do not have to be rarely occurring. Thirdly , the test is not one of whether the harm to the Green Belt (definitional or specific) is “significant or unacceptable”, either of itself or following the balancing exercise.

“I add that, whilst principally a case on the content of the “very special circumstances” test, Doncaster is also a case on the adequacy of the reasons given for a finding of very special circumstances. Although this is a case of an inspector’s decision and so does not directly relate to the Article 31 duty upon a local authority, nevertheless it does demonstrate the need for sufficient reasons so as not to be left in doubt as whether the very special circumstances test has been correctly applied: see Doncaster , §§74 and 75.”

Paragraph 89 is concerned with new buildings, and not with other types of development. [30]

“Paragraph 89, as its opening sentence makes clear, lays down a general rule that the construction of new buildings in the Green Belt is inappropriate development: “building” for this purpose has the wide meaning given by section 336 of the Town and Country Planning Act 1990 (see paragraph 7 above). The various bullet points are exceptions to that general rule and are therefore likewise concerned only with the construction of new buildings. Thus the second bullet point covers the construction of a building (for example, a café) as an appropriate facility for an existing cemetery, but it does not cover a material change in the use of land so as to create a new cemetery.”[30]

“It is common ground here that the meaning of the replacement building exception should be approached in a similar manner to the earlier manifestation of the exception considered in R (Heath and Hampstead Society) v Camden LBC [2008] 2 P&CR 13.” [18]

“Here the apparently simple question is whether “building” should be understood as meaning only a single building and excluding any group of two or more buildings. I agree that this term, and its role as an exception to the general principle that new buildings are inappropriate development in the Green Belt, should be considered in its context of the NPPF as a whole and in the context of the Green Belt policies in particular” [33]

“However, while noting the change in language from PPG2, the exception under consideration here is still found in the NPPF, and all parties urged me to adopt the same approach in respect of the “not materially larger” test as was endorsed in the Heath and Hampstead case with regard to paragraph 3.6 of PPG2.

I agree that this is the appropriate approach, because it appears to me that the exceptions, though modified, generally replicate those in PPG2 and more importantly the underlying purpose of this exception does not appear to me to have changed. This is not a case like Timmins where the court is being asked to imply a category of appropriate development omitted from the NPPF, but concerns the interpretation of a category of appropriate development which has been included, and is broadly similar to its predecessor.” [42]-[43]

Turner [2016] EWCA Civ 466, Arden, Floyd and Sales LJJ

The Inspector stated at para. 11 ‘Openness is essentially freedom from operational development and relates primarily to the quantum and extent of development and its physical effect on the appeal site.’

“I should mention that although in paras. 11 and 12 of the decision the Inspector referred to “operational development” rather than simply “development”, the judge correctly found that this was an immaterial slip and there is no appeal in that regard” [9]

“14 The concept of “openness of the Green Belt” is not narrowly limited to the volumetric approach suggested by Mr Rudd. The word “openness” is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case. Prominent among these will be factors relevant to how built up the Green Belt is now and how built up it would be if redevelopment occurs (in the context of which, volumetric matters may be a material concern, but are by no means the only one) and factors relevant to the visual impact on the aspect of openness which the Green Belt presents.

15 The question of visual impact is implicitly part of the concept of “openness of the Green Belt” as a matter of the natural meaning of the language used in para. 89 of the NPPF. I consider that this interpretation is also reinforced by the general guidance in paras. 79-81 of the NPPF, which introduce section 9 on the protection of Green Belt Land. There is an important visual dimension to checking “the unrestricted sprawl of large built-up areas” and the merging of neighbouring towns, as indeed the name “Green Belt” itself implies. Greenness is a visual quality: part of the idea of the Green Belt is that the eye and the spirit should be relieved from the prospect of unrelenting urban sprawl. Openness of aspect is a characteristic quality of the countryside, and “safeguarding the countryside from encroachment” includes preservation of that quality of openness. The preservation of “the setting … of historic towns” obviously refers in a material way to their visual setting, for instance when seen from a distance across open fields. Again, the reference in para. 81 to planning positively “to retain and enhance landscapes, visual amenity and biodiversity” in the Green Belt makes it clear that the visual dimension of the Green Belt is an important part of the point of designating land as Green Belt.

16 The visual dimension of the openness of the Green Belt does not exhaust all relevant planning factors relating to visual impact when a proposal for development in the Green Belt comes up for consideration. For example, there may be harm to visual amenity for neighbouring properties arising from the proposed development which needs to be taken into account as well. But it does not follow from the fact that there may be other harms with a visual dimension apart from harm to the openness of the Green Belt that the concept of openness of the Green Belt has no visual dimension itself.

17 Mr Rudd relied upon a section of the judgment of Green J sitting at first instance in R (Timmins) v Gedling Borough Council [2014] EWHC 654 (Admin) at [67]-[78], in which the learned judge addressed the question of the relationship between openness of the Green Belt and visual impact. Green J referred to the judgment of Sullivan J in R (Heath and Hampstead Society) v Camden LBC [2007] EWHC 977 (Admin); [2007] 2 P&CR 19 , which related to previous policy in relation to the Green Belt as set out in Planning Policy Guidance 2 (“PPG 2”), and drew from it the propositions that “there is a clear conceptual distinction between openness and visual impact” and “it is therefore wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact”: para. [78] (Green J’s emphasis). The case went on appeal, but this part of Green J’s judgment was not in issue on the appeal: [2015] EWCA Civ 10; [2016] 1 All ER 895.

18 In my view, Green J went too far and erred in stating the propositions set out above. This section of his judgment should not be followed. There are three problems with it. First, with respect to Green J, I do not think that he focused sufficiently on the language of section 9 of the NPPF, read as part of the coherent and self-contained statement of national planning policy which the NPPF is intended to be. The learned judge does not consider the points made above. Secondly, through his reliance on the Heath and Hampstead Society case Green J has given excessive weight to the statement of planning policy in PPG 2 for the purposes of interpretation of the NPPF. He has not made proper allowance for the fact that PPG 2 is expressed in materially different terms from section 9 of the NPPF. Thirdly, I consider that the conclusion he has drawn is not in fact supported by the judgment of Sullivan J in the Heath and Hampstead Society case.” [14-18]

“The openness of the Green Belt has a spatial aspect as well as a visual aspect, and the absence of visual intrusion does not in itself mean that there is no impact on the openness of the Green Belt as a result of the location of a new or materially larger building there. But, as observed above, it does not follow that openness of the Green Belt has no visual dimension.” [25]

“It was rational and legitimate for [the Inspector] to assess on the facts of this case that there is a difference between a permanent physical structure in the form of the proposed bungalow and a shifting body of lorries, which would come and go; and even following the narrow volumetric approach urged by the appellant the Inspector was entitled to make the assessment that the two types of use and their impact on the Green Belt could not in the context of this site be “directly compared as proposed by the appellant” (para. 13). The Inspector was also entitled to take into account the difference in the visual intrusion on the openness of the Green Belt as he did in para. 14.”[27]

‘In my judgment, it is unnecessary to gloss the paragraph 89 exceptions and they should be read naturally and in the context that it is part of the statutory planning code that permission for new buildings always carries with it permission for the use of the buildings. The paragraph 89 exceptions can only be concerned with the use of new buildings, since the exceptions must all involve new buildings of some description. To include changes of use with respect to those new buildings does not involve contradicting the judgment of Timmins since it was concerned with whether there was a unstated general category of appropriate development comprising a material change of use of land. …

It goes too far to extend the reasoning of the Court of Appeal in Timmins , concerned as it was with whether material changes of use comprised a category of appropriate development, to apply it to the paragraph 89 exceptions when the Court’s reasoning was closely based on the fact that what was appropriate development was what was set out in the NPPF and the NPPF made no provision for a material change of use as a freestanding category of appropriate development. There was nothing inherent in the concept of a material change of use which led the Court in Timmins to consider that it was not suitable in principle to be appropriate development. Indeed given that there had been such a category in the former PPG2 demonstrates otherwise. The point was, put at its simplest, that what is appropriate development is what is set out in the NPPF and the NPPF does not make provision for a general category of material change of use which preserves openness.’ [36]-[37]

‘It follows that, in my judgment, providing the new buildings fall within the use and other restrictions of the applicable indent of paragraph 89 the mere fact that permission for a new building may also involve a material change of use does not mean that it ceases to be appropriate development. This is a matter of the construction of language and purpose of the paragraph and that to interpret it according to that meaning and purpose appears to me to be consistent with a straightforward reading of it. Contrary to Miss Grogan’s submission, it simply does not bring in via the back door the general material change of use of land category rejected in Timmins . The only changes of use permitted in paragraph 89 are those arising from the new buildings defined as appropriate under it and in accordance with the conditions there set out.’ [47]

Davis [2016] EWHC 274 (Admin)

HHJ Cooke considered whether there was a “general test” that development is appropriate so long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within the Green Belt. Referring to Timmins at [31]:

‘Neither Mitting J nor Tomlinson LJ therefore expressed a view as to whether there was any “general test” such as Richards LJ had rejected. But the clear inference must be that they did not consider that there was any such test, since if there had been it would have been relevant to the outcome of the case. The cemetery had been agreed not to affect openness; if it was to be presumed not to be inappropriate for that reason the appeal should have succeeded. Further, none of the judges in the Court of Appeal disagreed with Green J’s conclusion that prima facie all development in the Green Belt is to be regarded as inappropriate unless within the stated exclusions. The only scope for expanding the list of exclusions left open is development complying with the positive obligations in para 81.’ [66]

“Implicit in the policy in paragraph 89 of the NPPF is a recognition that agriculture and forestry can only be carried on, and buildings for those activities will have to be constructed, in the countryside, including countryside in the Green Belt. Of course, as a matter of fact, the construction of such buildings in the Green Belt will reduce the amount of Green Belt land without built development upon it. But under NPPF policy, the physical presence of such buildings in the Green Belt is not, in itself, regarded as harmful to the openness of the Green Belt or to the purposes of including land in the Green Belt. This is not a matter of planning judgment. It is simply a matter of policy. Where the development proposed is an agricultural building, neither its status as appropriate development nor the deemed absence of harm to the openness of the Green Belt and to the purposes of including land in the Green Belt depends on the judgment of the decision-maker. Both are inherent in the policy.

If the policy in the first sentence of paragraph 88 of the NPPF meant that “substantial weight” must be given to the effect a proposed agricultural building would have on the openness of the Green Belt and on the purposes of including land within the Green Belt, the policy in paragraph 89 categorizing such buildings as appropriate development in the Green Belt, regardless of such effects, would be negated. This cannot have been the Government’s intention.” [20]-[21]

The Officer Report found that there was an impact upon the openness of the Green Belt, but concluded that “the proposal represents appropriate development within the Green Belt. The proposal is not considered to have a significant adverse impact on the openness of the Green Belt or the amenity of nearby properties.” The Council therefore approved the application for planning permission without applying the ‘very special circumstances’ test.

“It seems to me that the general policy approach to development in an area of Green Belt is clearly set out in paragraphs 89 and 90. That approach is different, dependent upon whether the proposed development is in principle inappropriate or in principle not inappropriate (i.e. in principle appropriate). The former includes both the construction of new buildings other than those that fall within the exceptions in paragraph 89; and, because the paragraph 89 and 90 lists are closed, also any development not listed in the bullet points in either of those paragraphs. The latter includes both new buildings which fall within any of the paragraph 89 exceptions; and development which falls within any of the paragraph 90 listed categories, even if, in either case, to fall within the category, the development has to satisfy additional criteria such as the preservation of the openness of the Green Belt and that the development does not conflict with the purposes of including land in the Green Belt. It is noteworthy that those two particular criteria feature both generically in paragraph 90, but also specifically in the second bullet point exception in paragraph 89 (“provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it ”). In my view, this illustrates the similarity of approach to the bullet point exceptions in paragraph 89, and the development considered not inappropriate as listed under paragraph 90.” [14]

“For the reasons I have set out (in paragraph 14 and following above), I do not accept Mr Village’s submission that both paragraph 89 and paragraph 90 start from the same general proposition that development in the Green Belt is inappropriate. In my view – and, on my understanding of their submissions, this is not exactly as either Ms Lieven or Mr Easton put it – the relevant policy distinction is not between paragraphs 89 and 90 as such, but rather between, on the one hand, proposed development that is in principle inappropriate, and, on the other hand, proposed development that is in principle not inappropriate. This was the distinction crisply drawn by Lindblom LJ in Lee Valley (see paragraphs 19-20 above). As I have described (in paragraph 14 above), the former includes both the construction of new buildings other than those that fall within the exceptions in paragraph 89; and, because the paragraph 89 and 90 lists are closed, also any development not listed in the bullet points in either of those paragraphs. The latter includes both new buildings which fall within any of the paragraph 89 exceptions; and development which falls within any of the paragraph 90 listed categories, even if, in either case, to fall within the category, the development has to satisfy additional criteria.” [48]

“Mr Village submitted that, as a result of the principles set out in Turner , in considering openness, a planning decision-maker is obliged to take into account visual impact of the proposed development. However, that is not what Turner held. The case concerned whether the inspector had erred in taking into account visual impact of the development. Both Lang J and the Court of Appeal held, not that he was obliged to take visual impact into account, but only that, in the circumstances of the particular case, he was entitled to do so. The judgment of Sales LJ is particularly clear in this regard.” [51]

“I appreciate, of course, that the proper interpretation of the NPPF is a matter of law for the court to determine. However, given that we are dealing with (to use Sales LJ’s epithet) an “open-textured” concept, in a policy for the guidance of planning decision-makers, I am persuaded by Ms Lieven’s submission that factors such as visual impact, purpose, and degree of permanence and reversibility, are not matters to which, as a matter of law, a planning decision-maker must have regard in every case in which a proposed development is in a Green Belt area, or even in every such case in which openness is an issue. They are (as Ms Lieven put it) “CREEDNZ factors”, a reference to CREEDNZ Inc v Governor-General [1981] 1 NZ 172 at page 183 per Cooke J, as approved in In re Findlay [1985] AC 318 at pages 333H-334C per Lord Scarman. They are factors to which the decision-maker may have regard if, on the facts of the particular case, in the exercise of his judgment and discretion he thinks it right to do so: in other words, the decision-maker has a margin of appreciation within which he may decide just which considerations should play a part in his reasoning process (see R v Somerset County Council ex parte Fewings [1995] 1 WLR 1037 at pages 1049H-1050A per Simon Brown LJ). In deciding which considerations should play a part, the decision-maker must of course be guided by the policy looked at as a whole, including its broad objects; but, once he has made that decision, this court will only interfere, on conventional public law grounds, if he strays outside that margin (R (Plant) v London Borough of Lambeth [2016] EWHC 3324 (Admin) at [62]-[63] per Holgate J, and the cases to which he there refers).” [58]

The meaning of “mineral extraction” in paragraph 90 should be interpreted consistently with the meaning of the word later in the NPPF. Later paragraphs lean in favour of “mineral extraction” meaning exploration as well as production. [16]

Richards LJ and Mitting J differed on the question of whether NPPF 90 should be regarded as a closed list. Tomlinson LJ preferred not to express a firm view on the question, it not being necessary to determine on the facts.

“I would accept that the effect of development on openness may involve questions of degree. and that there may be scope for some reduction in height and bulk offsetting some greater extent or spread of built area, and, if so, that how far the offset goes before the impact on openness increases can be a matter of impression. A conclusion on the degree of impact on openness is essential to reliance on the new flexibility for “previous developed land” in the first place … and to the analysis of harm.” [59]

““Openness” is not defined in the NPPF. The Inspector, at paragraph 11, described it as “essentially freedom from operational development”. I agree with the Claimant that the meaning of openness is freedom from any development, not just operational development. However, in my view, this was a slip by the Inspector which did not materially affect his reasoning, so as to give rise to an arguable ground of appeal. It is apparent from paragraph 79 of the NPPF that openness is an “essential characteristic” of the Green Belt which the policy protects.” [26]

“The Claimant submits that the Inspector wrongly elided the concept of openness with the concept of visual impact in paragraph 14. These are two different concepts, though often closely related…” [33]

“I cannot accept that in the light of Sales LJ cogent analysis [in Turner] the concept of openness is confined to the visual impact arising from buildings. Indeed, that is clear from Turner (supra) itself, when the impact on existing openness of the vehicles and so on around the site were taken into account. Even if the visual impacts the inspector identified in this case could not be said to be part of the development, that did not mean that they were to be ignored. The NPPF does not require an inspector to disaggregate the impacts of non-development features from the impacts of proposed development more generally.” [30]

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